8) The biggest fuss in Virginia legal circles this year was when a pro-prosecution judge started forcing prosecutors and police to actually prove DUI accusations rather than assuming guilt. Video. Later follow-up.

I know that every so often I've complained that tasers are sometimes misused. However, there are any number of times when the officer uses the taser for that which it was intended (an intermediate step short of pistol use). When an officer uses it properly he should get credit.

And you know what, this article's almost as bad as the first one. We still don't get the guy's name. We don't get any information on why he was lying. Political reasons? Trying to suck up to his leftish professors? Late paper? We don't get any information about if the school plans to do anything to the student or to the professors who reported without anything further than the kid's say so.

Still, the original was worse. If the reporters had done some precursory investigation they would have found enough flaws to make them suspicious. And how do run that story without interviewing the original source?

If one were cynical he might conclude that the reporter and his editor wanted their cake and to eat it too. If you put out the story incomplete then you guarantee at least one follow-up (either Kid Lies! or Confirmed! Rights Trampled!).

However, nowhere in my worst nightmares could I even conceive a Virginia judge engaging in blackmail of a newspaper in writing. Make sure you click through to the actual letter because, read as a whole, it's even worse than Joel's quotes make it seem.

21 December 2005

I'm not a big believer in unpublished opinions. First of all, in an age of West and Lexis there is no such thing as an unpublished opinion anymore. There are only opinions which are accorded weight and opinions which are not.

In a perfect world this should break down to "published" opinions - which establish precedent - and "unpublished" opinions - which are merely advisory. Unfortunately, the world's not perfect and the effect of an unpublished opinion seems to often depend upon who's relying upon it.

It's sometimes hard for me to get a judge to follow the words of a statute or follow established precedent. I handed one judge a published case and pointed out a precedent favorable to my client. I can't prove this and may be absolutely wrong, but it looked to me like the judge looked to see which court of appeals judges had participated in the opinion; he then looked up at me and said, "Mr. Lammers, I don't think this is the law in Virginia." Of course, that's an extreme case. However, it sets the scene for you as to what I'm facing when I present an unpublished opinion:

Me: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Prosecutor: Your Honor, that doesn't carry any weight.

Judge: Mr. Lammers, I'm afraid Mr. Prosecutor is correct. This case does not have precedential value. Additionally, the case at bar can be distinguished from Smith because in Smith the defendant was wearing a yellow shirt and in this case your client is alleged to have worn a green shirt. Motion to strike over ruled.

Compare with a prosecution presentation:

Prosecutor: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Me: Your Honor, that case is - at best - advisory. It doesn't carry any weight.

Judge: Mr. Lammers, this case has exactly the same fact pattern as the allegations against your client. I think this is the way that the court of appeals would apply the law. Motion to strike denied.

Does it happen that way every time? Nope, just often enough that every defense attorney knows the scenarios by heart.

Anyway, if I had my druthers unpublished opinions would say something like this:

This isn't my area of expertise, but I'd bet this goes away on appeal. It seems to me that a newspaper provides a forum for an assertion of the citizen who sends the letter. Since the assertion wasn't by an employee of the paper the action would seem to lie with the person making the assertion; of course, the person who made that assertion is probably litigation proof.

At the end of this week, France will pass "emergency" (non-debated) legislation which will make open source (free) software illegal. It will also allow scanning of all emails for attachment contents. And they want to make it illegal to copy CD's to a computer. (First story on Mobuzz.TV)

Now, in the ultimate insanity, the industry is going to try have people prosecuted for posting music lyrics. That's right, music lyrics.

That might have made sense about 100 years ago before radio got widespread, when the music industry actually made money through the writing and selling of sheet music. Even then one would have expected that the actual issue would be the music part of the sheet, not the lyrics.

You know, these ridiculous acts by the music industry, MPAA, &cetera don't stop anything. All they do is make sure all the interesting sites open in Russia (i.e. the $10 a year music sites) or Sweden (Pirate Bay et al.)(sorry folks, not going to link - you're going to have to travel into legal gray areas on your own - although I recommend you read Pirate Bay's answers to legal threats page - it's hilarious).

13 December 2005

The video on the page this week isn't me blathering on about whatever caught my attention, it's the videos made by San Francisco police officers which came to the attention of the Chief and the Mayor causing all sorts of whining and stupidity.

The videos are a bunch of skits primarily making fun of the police themselves, or, perhaps more accurately, making fun of the way the police see themselves as being perceived. One newscast I saw said that the videos came to light when an officer posted them on his website (not able to confirm that).

Now, I'm not saying the videos are right. I'm also not saying that I wouldn't have done something equally as silly when I was in my fraternity in college (thank goodness portable cameras weren't prevalent back then) or that I wouldn't even now. However, I've got to say that putting these out there wasn't the brightest move in the world.

Why? Well, because of people like me, of course. The next time the pictured officer is in a case charging a homeless Black man the video of the (clueless) officer running over a Black homeless lady could make for some wonderful impeachment/bias evidence.

Still, the way you handle something like this is to counsel (a nice sanitary term for "chew out") the officer and make him take it down. You don't call a press conference and commence le Festival. I'm not an expert in San Fran politics, but this just screams of a mayor trying to use the situation for political gain.

Sure, as far as federal law is concerned a county sheriff is a State official. As a practical matter, that just makes sense. The federal government deals with the State as a whole and the inner workings of the State are not its business (unless, of course, the State should want to do something as evil as mimic the Great Compromise in setting up two houses elected in different manners). Whether the constitution and laws of a State leave power in the hands of local municipalities and their officials or set up the governor as the person with almost all the power, the federal government should only care about the application of power by the State.

On the other hand, whether an official is a State actor within the State is entirely a question for that State. Should the State (or one of us 4 Commonwealths) choose to organize itself with a rudimentary State government and actually concentrate 95% of the political power at the county level with its own constitution, laws, and precedent declaring that officials are actually "county" officials then they're county officials as far as the State is concerned. Of course, this would be a State by State matter.

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

This weblog's primary subject matter is criminal law. I do my best to avoid venturing into political subjects, personal life crises, and the various distracting things found scattered about the web. However, I think that about 10% of the time I get off point. Oh well . . .

This is my hobby. Almost always comments I make are gut level reactions to news articles based upon my knowledge and experiential biases. I rarely spend time researching the subject of a post so if you base any decision upon something I've written here you should have your head examined.

Yeesh! I think Joel might be taking this a little bit more seriously than I am.

"[R]ioting concerns lead me to wonder whether Professors Cass Sunstein and Adrian Vermeule might now believe that California Governor Arnold Schwarzenegger is morally required to grant clemency in order to save the lives that could be lost in riots if he fails to grant clemency."

When dealing with the gang mentality- the rough and tumble thugs forget one very important fact. When you choose the path of evil, when you take the road that leads to gangs and guns… sooner or later, someone is going to get killed.

09 December 2005

Being opposed to the death penalty for rational reasons can be painful.

The right question to ask is not whether capital punishment is an appropriate - or a moral - response to murders. It is whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.

That certainty has been established by DNA tests showing that many death row inmates did not commit the crimes for which they were convicted. Case closed.

The painful part of this position is that we who oppose capital punishment on these grounds have to breathe the same air as the celebrities, political panderers and other hankie-twisters who materialize every time a "Tookie" runs out of options and faces a far more humane death than that which he delivered to others.

My business cell phone has a voicmail wherein I say something to the effect of "If I'm not answering the phone I'm in court, at a jail visiting a client, in a meeting, or it's after 8:00 p.m. . . ." I get back to my car this afternoon and there is a message from a secretary of one of the Commonwealth attorneys' offices trying to get my potential court dates for the next term of circuit court. However, she starts her message by pointing out that I didn't state the most important reason I might not be answering the phone - "because you're too drunk."

06 December 2005

I just finished my first law school “Final Exam” (Torts). I feel like I just gave birth. To an attorney. Next semester, I’ll have my first CrimLaw class. Anyway, here are some CrimLaw headlines from around the country.

Man Sentenced in Judge Murder PlotA Kentucky man was sentenced to 20 years in prison on each of two counts of attempted murder. The man was convicted of plotting a year ago to murder Judge Bruce Petrie at the County Courthouse and his former wife.

‘Tis the Season…A 69 year old Salvation Army bell ringer in Florida wasn't going to let someone run off with his red kettle. He ran after the thief, who was decades younger and about 100 pounds heavier, authorities said. The bell ringer grabbed back the 20-pound kettle before the thief sped off in a car.

Iowa Lawmakers Debate Reinstating the Death PenaltyLawmakers in Iowa are renewing a push to reinstate the death penalty. The debate will come next month when lawmakers consider toughening the state's sex abuse laws. One state senator says the death penalty would be limited to those who kidnap, sexually assault and kill a child.

04 December 2005

Well, I'm going to be in the Cincinnati & Northern Kentucky region for the next couple days. My evenings are going to be filled with family obligations but the days are going to be clear. So, I figured I'd go court watch and see how things run (since it's not baseball season, it's either courtwatching or matinee movies).

If anybody out there is from the region and could give me a heads up to anything interesting (jury?) I'd be grateful. If you're from Cincy it would be helpful if you could just tell me where I could observe criminal trials. From what I can tell by looking at the clerk's site there are two courthouses (maybe?) and the site didn't say what was docketed where.

03 December 2005

It's always interesting to see what's making news in other places when I'm traveling. The Lexington Herald-Leader has an appropriate sense of what's important in the world - the over-the-fold stories of the last two days have both been dominated by UK basketball. Yesterday was about the attempt to get Randolph "the NCAA will never figure out I have an agent if I don't sign a written contract" Morris back on the team. And today the big story is

A women tries to kill herself and her husband. She only succeeds in killing him. Then she spends a decade in a mental health facility because she has extreme mental health issues and is not competent to go to trial.

The mental health institution declares that it is going to release. The prosecution gets the indictment back in place. The question now becomes whether her mental condition will worsen in jail. The prosecutor claims not to know whether it will but filed a motion asking for a quick mental evaluation "it would be unjust to the victim and to the family to allow the Defendant "to decompensate in jail to avoid being prosecuted for the crimes of murder and arson."

He started sending things to the police to remind them of his murders. Then he sent them a note asking if they could trace something he sent to them on a computer disk. They sent a coded message (via a newspaper personal ad) saying they couldn't. Guess what? They lied.

As long time readers know, I find the Lexington prosecutor's site amusing. It's kind of garish and in your face - clearly a departure from the vast majority of prosecutor pages, which are usually pretty innocuous. Still, I haven't linked to it lately because a while back I had come to the conclusion that it had stopped being updated. However, being back in Lexington I was inspired to take a look.

How will they prove the case? How 'bout this email from the lawyer to his client:

"they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."

I'm watching jury selection and the prosecutor has just struck the only Black man on the jury. Defense makes a Batson motion. The prosecutor's reason for the strike?

Well, Your Honor, I don't know Mr. McGillicutty personally, but the name's fairly unique and I've prosecuted a number of McGillicuttys out of the Vistaville area and that's where he's from. He may have formed a prior opinion of me.

[note: I don't really think he should be disallowed this reason for a peremptory strike; I just thought it was an interesting insight into that dark labyrinth which is a prosecutor's mind. :-) ]

2) All You Can Do is Bite Your Tongue

In the same trial as above, the Defense has subpoenaed a number of professional witnesses (doctors and nurse/record keepers). It's a sex offense case and some of the things the prosecution is trying to use to prove the offense are pre-existing serious medical conditions which had long before the alleged event sent the complaining witness to the hospital. During the prosecution's case in chief the prosecution's (lay) witness admits to the point they were there to prove. When the jury breaks for lunch the Defense tries to do the right thing and asks the judge to release them. The following conversation takes place:

Defense: Your Honor, at this time I'd ask you to release Drs. Smith and Jones and Nurse Green.

Judge: Why?

Defense: Because the prosecutor's witness admitted the point I had them here to prove.

Judge: Did you know the prosecutor's witness was going to admit the fact?

Defense: No, Sir.

Judge: Well, did you ask the prosecutor if his witness was going to admit the fact?

Defense: No, Sir.

Judge: Mr. Moel, just subpoenaed and kept three professionals stuck in a courthouse for more than half a day and you didn't even need them. You've basically just wasted their entire day. You should have asked the prosecutor if his witness was going to admit the point. The next time you'd better make sure that you're going to need them.

This is one of those moments when, as a defense attorney, you just have to bite your tongue. Yes, you know that you shouldn't reveal your defense strategy to the prosecutor. Yes, you know that if the prosecutor's witness had testified differently the judge would have never given you a continuance to get the witnesses you needed ("If you needed them you should have subpoenaed them, Mr. Moel"). Yes, you know that even if the prosecutor stipulated the fact it's not the same as having witnesses prove it (especially after a prosecution witness has denied it). Still, you're in the middle of a trial and pointing out these fairly obvious truths to the judge isn't going to make the judge any happier with you (and by extension your client). So, you stand there and take it and the next trial do the exact same thing you did in this one in order to defend your client as best you can.

3) Police Computing

So, I'm sitting in the courtroom waiting for a case to be called and chatting with the police officer next to me. I comment on the spiffy new computers I've seen them using in their cars (we can't afford $400 video cameras to record what actually happens in stops but our tax dollars can be spent on impact resistant computers for every car - $$$). He admits they're pretty cool and it's great how they let him check records without even having to call dispatch. However, they're also a pain. Why? Because they keep track of the car's speed and location. All of the sudden the higher ups are all over the guys on the street because they are speeding too often. And, Lord help them if they sit in one place too long without having a "proper" reason for doing so. All of which sounded fine to me until he explained several techniques used (ie. pacing or driving up behind a car to observe if it's the reported DUI and then speeding past it to the car a mile ahead to check it out) which get counted as non-necessary speeding. I guess everyone has to deal with some sort of silliness at work (and, yes, I am sure that officers in other jurisdictions would be a little upset at losing the not-needing-to-obey-the-speed-limit benefit of being an officer, but all our officers are fine upstanding, outstanding examples of law enforcement perfection and would never even dream of taking advantage in their position in such a manner).

01 December 2005

Rick, whose letter I talked about in this week's LexCast, follows up with a further inquiry:

An avenue to explore with the facts in Moore might be a due process violation. I am loathe to argue substantive due process, but this strikes me, arguably, as a PROCEDURAL due process claim: if Virginia wishes to authorize warrantless arrests for misdemeanors, they may, without offending the federal constitution. But since Virginia explicitly prohibits such arrests, the Commonwealth creates a procedural due process right which is enforceable under the federal constitution.

Probably wasn't argued below, so even if the idea has legs, it's likely waived now anyway. But what do you think, theoretically?

It's an interesting thought but I haven't the time to explore it at the moment so I'll leave it to ya'll to comment upon (while I'm spending the day driving to Kentucky).

I've been involved in a number of pretty desperate attempts to try and keep a drug conviction off some kid's record so he can continue to attend school. However, I must admit that I view this as a long shot. I'm pretty sure the constitutional crimlaw issues will be judged not to apply because financial aid is a civil rather than a criminal issue. As for the equal protection claims, acting prejudicially against those who have been convicted has a long history (denial of voting rights, denial of right to have a firearm, denial of right to hold office, etc.) and I doubt this will give the courts much pause.

I understand the basic idea behind the federal legislation denying aid to those who have been convicted of drug use. If the young adult understands that he will lose the money he needs to go to college he has an incentive not to use drugs. Of course, that assumes people know about this provision and that a drunk college freshman will remember it at 2 a.m. Honestly, neither is too likely.

Still, one should be responsible for one's actions. However, the truly galling part about this is, as I understand it, this is a lifetime ban. That's just downright stupid. A two year ban would make the point and perhaps not totally throw a kid who got caught doing something dumb entirely off track. Maybe the ban should go as long as 5 years; this would give someone who has changed his life a chance to come back later and improve it. Anyone who's seen much of life knows that a lot of the things which are done 18-22 are not things which those who have grown a little have a desire to do at 30. A lifetime ban just tells someone that no matter how much he improves himself he will still be denied the opportunity to go to college (unless he somehow increases his financial lot without college, at which point this law become irrelevant anyway)..

My vacation was supposed to start Wednesday afternoon, right after I continued a case on the 1 p.m. docket. The plan was to take a week, travel to Kentucky to hit some old stomping grounds and touch base with some folks and then go to Cincinnatti for my brother's confirmation (on Tuesday night; Who ever heard of having confirmation on a Tuesday?). Anyway, Mom told me about this about a week ago and I've been trying to get things squared away since. Luckily, the end of this week was already clear so I could extend the trip for 7 days. I don't dare go past 7 days because I have a few petitions to the Court of Appeals and at least two of them are cases in which the trial court should be overturned. Experience teaches me that this means my rejection slip from single judge of the Court of Appeals will take longer to get mailed to me and be thicker. From the date on the rejection slip I have 10 days to email a single page .pdf to the court stating the reason it's wrong and demanding to tell a 3 judge panel why the petition should actually be scheduled for argument. In that circumstance 7 days is the most I can risk away from my P.O. box.

Of course, there are still a ton of things that need to be squared away. I'd set aside Tuesday afternoon to deal with a bunch of it and planned to wrap up the rest this morning.I'll let ya'll pick which of the following fits best:

I open my P.O. box yesterday and there on the top is a manila envelope from the Attorney General's office - never a good sign.

Sure enough, a former client has filed a habeas petition against me, To make it worse, the AG office mailed it to an old address (it got forwarded) so it's getting to me late. I get to spend my afternoon up to about 8 p.m. putting together an answer and am thus thrown back at least a day for the start of vacation. Wonderful.

Anyway, the habeas is put together better than most I've seen. The writing is clear and it even includes copies of the case law and secondary sources Petitioner is relying on. And, for all its ill timedness, I can't blame Petitioner for taking her shot. Still, she did mange to irk me with some parts.

The primary complaint is that I was ineffective because I neither asserted the single larceny doctrine nor informed her about it prior to her guilty plea. This is a doctrine under Virginia law which says if you steal a key ring the prosecution cannot charge you with larceny for each key on the ring - only one larceny for the entire ring; the important factors to this limitation are that it all happens in the same time and place. Petitioner was extradited from Wyoming to face three charges: petit larceny (dad's wallet) and two charges of credit card theft (all from dad's wallet); there was never any doubt as to the facts of the case. The prosecutor dropped the petit larceny and Petitioner pled guilty to the two credit card thefts.

But wait, you think to yourself, that means Ken did screw up! Nope, while Petitioner has a good grasp on the basics of the single larceny doctrine she obviously didn't research its later development too well. Under Scott v. Commonwealth, precedent in Virginia holds that because the crime of felony credit card theft was created by the General Assembly it abrogates the common law rule that "stealing" a chose in action is not a crime. Going further it reasons that the creation of a brand new larceny by the General Assembly does not carry with it the single larceny doctrine restriction which applies to all the other larcenies. Not my favorite opinion, but it is binding precedent.

Anyway the strongest bolt in Petitioner's quiver pretty much shatters against Virginia's precedent. However, she made some other accusations which are basically downright strange.

The main reason she is upset and filing the habeas is that she got 10 years with 5 suspended on each charge (to run concurrently) and she got 3 more on a show cause from another jurisdiction. Her sentence was far above the guideline recommendation and I think it was extremely disproportionate. However, it was entirely legal. I have my theory as to how Petitioner got that much time, but I shan't air that right now. Of course, Petitioner has her own explanation for the disproportionate sentence: Ken Lammers sucks.

She makes the claim that I told her that a couple days before I had screwed up a case in front of the very same judge, that he was angry over that when he sentenced her, AND that I was shaking in fear during her sentencing hearing. Now, I don't remember talking about another case with her but it's always possible - sometimes I use general descriptions of other cases to explain how I think other actors in the court will act and react. The problem is, my calendar doesn't show me as having been before that judge for two months prior to Petitioner's sentencing date (which is fairly typical since I usually have one day per term) so there's no case I could have been talking about.

Gotta admit that my blood started to boil when I saw the accusation that I was shaking in fear. Shaking in fear??? You've got to be kidding me. How in the world do you answer that?

Then I realized that she might have merely misunderstood my trembling in anticipation of springing into battle, crushing the enemy, seeing him driven before me, and hearing the lamentation of the women. Or maybe I was just agitated because, under the terms of the guilty plea, I wasn't going to be able to join in mortal combat with the prosecutor. Or maybe there was a minor earthquake. Or maybe she made a bet with another inmate to see who could make the more ridiculous claim in her habeas petition.

Obviously, I don't know what the back story on that claim is. All I know is that it is incredibly insulting, Of course, the whole thing is a claim of ineffective assistance of counsel so I should be insulted by all of it. Still, this is the part which got under my skin.

I go now to gather and calm myself. Then I will continue prepping for my trip. I figure I can probably still get on the road by noon Thursday (God willing).

I posted this item (with several others) on 11/26, but with the Thanksgiving holiday and several subsequent posts, it kind of slipped through the cracks. As a lowly 1L, I wanted opinions from "real lawyers" on the policy of this district attorney. Do you think that a No Plea Bargain policy is good for the system?

27 November 2005

Wales - A young woman gets drunk and a friend arranges for her to have a security guard escort her home. Two days later she reported to a university counselor that "something" had happened. Police were called in and the guard admitted to consensual sex in a hallway near her apartment. She doesn't remember but claims that if it were consensual she would have led the man into her nearby apartment.

"He is wrong, there is no doubt about that, it is a dreadful error. The judge is utterly and totally wrong, he needs to be spoken to and sent on some re-training. This is a dreadful outcome because women will now think they cannot have a single glass of wine - I think this is going to put women off coming forward again and again."

And while that's pretty obviously a politician making hay, some have laid out the case more eloquently.

Until the 2003 Act came into force, a man would normally be acquitted if he could show that he "honestly" believed that consent had been given, even if a woman claimed that she had protested.

But this "honest belief" defence made juries reluctant to find defendants guilty in date rape cases and the conviction rate fell from one in four reported rapes in 1985 to one in 14 today.

The Government thought that more guilty verdicts would be returned if the consent provision was tightened, so it replaced the old defence with a new test: if the prosecution could prove that there was reasonable room for uncertainty over whether consent was given - and the defendant did not take reasonable steps to ensure that it was - he would have committed a rape.

All-in-all, a disturbing shift from the prosecution proving guilt to the prosecution proving opportunity and then forcing the defense to prove innocence. However, I am not an expert on the laws of the U.K. so I cannot comment on whether that's an accurate assessment of the law.

I get a few hits here daily from the U.K. Anybody able to explain what the actual state of the law is?

2) Triple Jeopardy - The New York Legislature refuses to pass "civil confinement" laws so that NY can commit sanctioned double jeopardy. The governor takes it upon himself to start acting like the law is there anyway. A judge says "No" and orders evaluations for mental illness and release if it is not found. The first guy is set to be released from the mental hospital. So what happens? He is transferred directly back to prison.

Note, this guy has served all of his time and, under the judge's order, two court-appointed psychiatrists have found him not mentally ill or a danger to himself or to society. Welcome to the USsr!

2) In India a 75 year old man was found guilty of raping his own daughter. The trial court gave him five years. On appeal, the trial court was reversed. On further appeal, the appellate court was reversed and the sentence was raised to life in prison. Now he's back in court with an affidavit from his daughter stating that it never happened - she was induced by her mother to make the claim.

26 November 2005

One of the biggest death penalty cases out there right now is in Singapore. An Australian citizen, Van Tuong Nguyen, tried to smuggle heroin into Singapore. As was driven home to the U.S. in 1994, Singapore punishes severely and is not dissuaded when foreign governments try to intervene on behalf of their citizens. Nguyen was caught and sentenced to death.

1) China - Unburdened with the mandate against double jeopardy, a Chinese Appellate Court increases a penalty from life to death because the defendant went to the press first, the murder was committed in cold blood, and the defendant showed no intention of compemnsating the victim's family.

25 November 2005

The decision referenced by Orin doesn't bother me so much. The measurement in a straight line from the school to the location of a drug dealer makes sense. You are trying to create a dealer-free zone because kids congregate on or near campus and it's a natural place to prey upon them.

When I was in Junior High School (7-9th grade) there was a road that was barricaded off behind both the Junior High and the High School; it went about 100 feet further to the High School parking lot and I'm sure it was blocked off because the local suburbanites complained). It was the quickest way for those of us who walked to get to school and the area around that gate got clogged every morning with kids who hung out there - mostly the kids who viewed themselves as "cool" (though many of us just thought of them as the "dopers") and there was usually a funny odor in the air as I walked through them (I just wanted to get to school). These guys would pull up in a car out on the street and deal pretty brazenly. Then, in the 8th grade I was sitting in my homeroom about 5 minutes before school started and a kid, whom I remember as a big time doper, came dashing in the door. The police had raided the area, coming out of houses at the end of the street and arresting a bunch of kids and catching the guys who were dealing from their car. Doper swore that cops had even come down out of this huge tree which was out there. After that nobody hung out at the end of the street anymore and, I think the psychic shock caused the class years around mine to have less drug penetration then normal (beer & whiskey, on the other hand . . .).

Anyway, the dealers' car was parked on the street. As you walked to the High School, I'm pretty sure it was over 1,000 feet from the buildings, even as a crow flies. However, there was one row of houses between where they parked and the Junior High School. Walking around these houses probably put them over 1,000 feet from the school. As the crow flies, I doubt it was 500 feet. As I think back on it, there is no doubt in my mind that they were preying on the kids as they walked in to school. I've got no problems with the 1,000 foot safety zone.

Next time in the Strange Things in Ken's Life Theatre: Someday I'll have to tell ya'll about the day I was approached and asked to deal.

Over at MoBuzz, Miss Stenquist tells us about a verbal lie detector which an Israeli is trying to sell to airports (2d story). And then she goes on to besmirch those of you who got up at 5 a.m. this morning to be the very first person into K-Mart - to make sure you got Uncle Harry the Talking Bass before they ran out.

24 November 2005

23 November 2005

Vacatur: an order of a court vacating a legal proceeding. Webster's Third New International, 1972.

Why quote from Webster instead of Black? Because the three legal dictionaries I have in my office don't have this in them.

Anyway over at Volokh and Balkinization there is a discussion of the doctrine behind this. The background is pretty simple. The government is holding someone without charging him with anything. The person files a habeas. The government has purposefully held the individual in possibly the only jurisdiction which would rule in its favor. The courts in that jurisdiction do rule in the government's favor. The person appeals to the Supreme Court where the outcome is far from certain. At this point the government files charges against the person in order to moot the case before the Supreme Court and keep favorable precedent in place.

The argument is that in the case of one party purposefully abusing the system, unilaterally, and causing a case to become moot the underlying precedent can also be made moot.

I'm not an expert in this, and I haven't been following the case, but here are the issues which stick out in my mind:

1) Mootness - As we all know, mootness is not an absolute. If it were there would be absolutely no precedent regarding abortion because no one gets from a trial court, through the appellate courts and to the Supreme Court in 9 months. Now, I don't know what nook or cranny a case wherein one party purposefully set out to void the Court's jurisdiction could fit into but I suspect that a Court not particularly thrilled with being manipulated might bite on it. And, if it did the whole trick might backfire on the government because at this point there is no pressure on the Court to find in the government's favor. If he's charged then what difference does it make if a habeas is granted setting precedent against holding someone without a charge?

2) Applying Vacatur -

The parties in the present case agree that vacatur must be decreed for those judgments whose review is, in the words of Munsingwear, "'prevented through happenstance'"--that is to say, where a controversy presented for review has "become moot due to circumstances unattributable to any of the parties." Karcher v. May,484 U.S. 72, 82, 83, 98 L. Ed. 2d 327, 108 S. Ct. 388 (1987). They also agree that vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court.

U. S. BANCORP MORTGAGE COMPANY v. BONNER MALL PARTNERSHIP, No. 93-714(I'd like to take credit for having found this but it's in the arguments on both blawgs).

The appeal above was argued specifically as to Vacatur caused by settlement and denied. However, the dicta above would seem to strongly favor use of vacatur in a case such as this if, and this is a huge IF, you could get the court to accept cert. solely and specifically vacatur. Maybe the Court will be upset enough with the manipulation to grant cert. but I'm not holding my breath.

As well, does it really accomplish anything? The next guy who's being held in the government friendly jurisdiction is going to get the same treatment. When his case reaches the Circuit Court it may not say it's following precedent but you can pretty much figure they're going to pull out the other decision from an old computer file and just change the names.

If this were a less prominent case so that all the judges in the Circuit didn't already know the result vacatur might make more sense. Perhaps, if there are no more people being held without benefit of the courts for 50 years or so everybody will forget the current case. However, the case is too prominent and I fear this is an issue we will revisit sooner rather than later.

The latest LexCast is up both in video and audio form. It's a tribute to Professor Roger Groot - the Professor which every single graduate of Washington & Lee remembers with fondness and appreciation. Men such as he are rarity and he will be sorely missed.

Over at MoBuzzTV, Karina Stenquist's first two stories are about law matters. First, we learn of the U.K.'s plan to put a camera every 400 meters - on every road - to monitor and keep track of everyone's movements for at least two years. Then she warns us about transvestite, Thai, criminal gangs. And the final story isn't about law or crime - it's just weird.

19 November 2005

1) Claims of attack at memorial false. U.S. Park Police this week said they want to assure the public that the memorials and monuments in Washington are safe, after a man who was stabbed stumbled onto the grounds of the Jefferson Memorial Wednesday night. The police now say that the man actually tried to commit suicide.

3) Whatever happened to just putting a frog in the teacher's desk? Police in Hampton, Virginia charged a second eighth-grade student in a plot to poison their social studies teacher. The 13-year-old boy is believed to have helped in one of three attempts to sicken the man by placing a cleaning agent in his coffee. Police discovered the plot Nov. 7 after another student told them about it. The teacher had reported vomiting a few days before the discovery.

1) Chatting with an officer while waiting for a case I mention that I usually walk my dogs about midnight every night. The officer tells me I might not want to do that because someone got robbed in my apartment complex's parking lot last week. A couple days later I run across the officer who was the first responder (who also lives in my apartment complex). I ask him what happened.

Well, I was asleep in my apartment and I heard someone in the parking lot yelling for the police. My first thought is you've got to be kidding me! I think that someone had a fender bender. I get up and throw my uniform on and go outside. There's a lady in the parking lot who they had just tried to rob.

Apparently, a couple guys tried to jump in the lady's car but she put it in reverse and almost ran one of them over.

I couldn't believe it. My car was sitting right there and everything and they still did it. Not that I should be surprised - it's the same spot where they robbed that other guy two weeks ago.

You've got to be kidding me. I moved out of Richmond to get away from that stuff. I comment to the officer that I imagine it happened over by his building because it is the last one in the complex and they could make an easy get away.

Yeah, but when they ran away they ran through the pool area (the center of the entire complex) and jumped into a car they had waiting over by your building.

Wonderful. Well, at least it explains why there have been police patrols through our parking lots so much lately. I've actually had a couple cars start to follow me until they realized that I was walking the dogs (or, more accurately, being walked by the dogs).

2) Overheard discussion:

Attorney: You can tell Judge Smith was never a criminal defense attorney.

Lawyer: Why?

Attorney: Because he says things at trial like: "I realize you're preserving your argument for the appellate court and I'm happy to let you make a record but I'm ruling against you."

Lawyer: *chuckle*

Attorney: Yeah. I feel like asking him if he's read any opinions from the Court of Appeals lately.

[note] The undercurrent here is the perception by the defense bar that if you're going to win you need to win in the trial court. Only a judge with a prosecutorial background (or perhaps civil) would think that you were trying to set things up so you could win later in the appellate courts.

3) Former Client hired a "paid attorney" to represent him on a show cause. I had represented him on a prior show cause and got his time resuspended but he thought he needed better this time. I'm in the lockup area talking to a client whom I still represent and he starts waving like crazy at me through the glass. A little surprised to see him (he was on the street all the time I was dealing with him) I ask the deputy to get him out. He wants to tell me what happened: "He got me a year. I paid him all that money and he got me a year." etc. I listen for a couple minutes and say some words of sympathy before excusing myself. I can't say the "paid lawyer" did a bad job. Given the facts and the judge that was the probable outcome from the beginning whether I handled it or he did. And, to be honest, I can't generate a whole lot of sympathy because I think (without knowing) that the reason he hired the "paid lawyer" the day before he was supposed to go to court represented by me was to buy himself another month of freedom before getting sentenced (paid lawyer could not be in court on one day's notice). Still, I gotta admit that I find it interesting that he wanted to chat with me about the results.

15 November 2005

1) Granny, get your gun! You don't want to mess with this grandmother who wounded an intruder hiding in one of her closets. She said she shot him in the leg because she didn't want to kill him.

2) File under: Don't hold your breath! Prosecutors dropped trespassing and disorderly conduct charges against a George Mason University student who protested a campus visit by military recruiters. College officials had requested the charges be dropped. The student now says he wants an apology as well.

3) Trying to pull a legislative end-run? Here's the latest on the constitutionality of Virginia’s DUI laws. The State Crime Commission is recommending legislation to get around a judge's ruling that a key component of the state's drunken driving law is unconstitutional. If you'll remember, a Fairfax County General District Court Judge ruled that the DWI law denies a defendant's right to presumption of innocence. The bill proposed by the commission says that when a lawyer challenges the constitutionality of a law in general district court, the case is automatically moved to circuit court.

"It is true that those who argue that a doctrinal development has occurred do not all assert that the death penalty is immoral in principle. The precise change, they argue, is that the current teaching substantially limits the purposes for which the death penalty can be imposed. The new teaching is that, unless it is necessary to defend society against further harm, the death penalty should never be used. Under the traditional teaching, as expressed in the 1994 version of the Catechism, the death penalty was given more expansive use—a retributive function, not just a defensive function—and could be inflicted as a proportional punishment to redress particularly grave crimes. In a manner of speaking, this is a development to the extent that a change has occurred that is not contradictory to previous teaching. The development, however, is not necessarily predicated on any doctrinal change, as argued above. Thus, even in this sense, the argument that EvangeliumVitae’s teaching on capital punishment represents a development in doctrine is unfounded."142

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142 "Although Joseph Cardinal Ratzinger announced at the publication of Evangelium Vitae that it contained a 'development of doctrine,' his subsequent explanation makes it clear that he was only speaking loosely: 'Clearly, the Holy Father has not altered the doctrinal principles which pertain to this issue [the death penalty] as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances.'"

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"In the absence of a blanket prohibition against the death penalty, it would be over-reaching to assert that Catholic judges and attorneys are barred from participating in any capital proceedings whatsoever. In order to conform properly one’s mind and heart to this teaching, however, and in light of the reasonableness of the prudential judgment concerning the medicinality of the death penalty in our own times, extreme circumspection is necessary."

Interesting. This is what I've plucked out of an extremely quick reading (after I stumbled over this by accident). I urge ya'll to take more time then I have at the moment and read it more thoroughly.

1) I've been assigned to represent Client on his appeal of a domestic violence case. Client pleads guilty and prosecutor gives a minimal description: "They had a fight, your Honor." I start to proffer my client's position: "Your Honor, Client would state that the fight started when Wife swung the hair dryer at him and then charged him, slamming her fists into his chest. Rather than striking a defensive blow - which he would have been allowed - he grabbed her arm and then spanked her. It's a violation Sir, but we'd ask that this case be taken under advisement for a year. It's a strange situation where he could have punched her and been not guilty but in taking a lesser action he is guilty. Furthermore, they've separated and I can tell you Client has no intention of seeing her ever again."

At this point Wife stiffens in shock she looks over my head at Client. Client, in the world's worst stage whisper, says "Yes, I do."

I freeze and spend about half a second thinking what my ethical obligations are here. The judge catches it and before I can do anything (like move to withdraw) he steps in and asks my client a few questions about whether he will get back with his wife and then takes the case under advisement.

2) Arguing whether three dismissed charges and one prior conviction can be used as evidence in a check cashing case, the prosecutor first argues that it should be allowed in to identify. I point out that there is no doubt my client cashed the checks - no identity issue, only permission - and that Virginia law has only identity as the major theme in allowing this kind of evidence. The prosecutor then gets up and reads from Friend the statement that prior acts can be introduced to prove any element. After he finishes, I start to ask for sur-rebuttal because he raised new issues but the judge tells me to "sit down, you've proven your point." He then rules in my client's favor, excluding all the prior acts: "All that horn-book stuff is nice theory but it's too prejudicial for anything outside of proof of identity."

3) I get to sit and watch a prosecutor and a judge bump heads. First, despite dubious looks from the judge, the prosecutor drops a DUI charge because he has determined that the checkpoint didn't adhere to the requirements under the law. Later that same prosecutor, in a case I'm not in court to hear, so angers the judge when he refuses to prosecute another case that Judge stops court and takes a 30 minute recess. You know you're in a rough courtroom when the prosecutor is defending people.

4) Two comments which have stuck with me from the last week:~~ At jail one inmate points me out to another: "There's that lawyer who got me off on that thing."~~ After winning a motion in limine Client is put back in lockup with other defendants. As the bars close, he points me out to the other guys and yells in joy: "That attorney out there is slicker than sh!t!"

Not exactly the way I've ever wanted to be described but I appreciate the sentiment.

Professor Groot scared, entertained, and - most importantly - taught everyone who went through Washington & Lee Law School. Who can forget the fear of being a 1L in his 8 a.m. criminal law courses? And who can forget the amount of law we learned because he pushed us? He was an extraordinary man and every single W&L grad is better for having known him.

If you decide to use GOOGLE and the internet to help you with the murder of your wife- remember to clear your browser's "history"... better yet- get rid of the computer entirely! This is especially true when her body is discovered in a nearby lake and police find lake levels, water currents, boat ramps and information on how to access the lake stored on your computer.

Okay. I know I'm just a lowly 1L, but can someone out there explain how a local ordinance can supercede the 2nd Amendment to the U.S. Constitution? Also, if the city bans military recruitment- of federal soldiers/sailors/airmen, can the federal government withhold federal dollars in funding?

War makes strange giant creatures out of the little routine men who inhabit the Earth.

- WWII correspondent Ernie Pyle.

Some veterans bear visible signs of their service: a missing limb, a jagged scar, a look in the eye. Others may carry the evidence inside them: a pin holding a bone together, a piece of shrapnel in the leg -- or perhaps another sort of inner steel: the soul's alloy forged in the refinery of adversity. Except in parades, however, the men and women who have kept America safe wear no badge or emblem. You can't tell a vet just by looking.

What is a vet?

He is the cop on the beat who spent six months in Saudia Arabia sweating two gallons a day making sure the armored personnel carriers didn't run out of fuel.

He is the Nebraska farmer who worries every year that this time the bank really will foreclose.

He is the barroom loudmouth, dumber than five wooden planks, whose overgrown frat-boy behavior is outweighed a hundred times in the cosmic scales by four hours of exquisite bravery near the 39th Parallel.

She -- or he -- is the nurse who fought against futility and went to sleep sobbing every night for two solid years in Da Nang.

He is the POW who went away one person and came back another or didn't come back at all.

He is the Quantico drill instructor who never has seen combat -- but who has saved countless lives by turning slouchy no-'counts into soldiers, and teaching them to watch each others' backs.

He is the parade-riding legionnaire who pins on his ribbons and medals with a prosthetic hand.

He is the career quartermaster who watches the ribbons and medals pass him by.

He is the anonymous hero in the Tomb of the Unknowns, whose presence at Arlington National Cemetery must forever preserve the memory of all the other anonymous heroes whose valor died unrecognized with them on the battlefield or in the ocean's sunless deep.

He is the old guy bagging groceries at the supermarket -- palsied now and aggravatingly slow -- who helped liberate a Nazi death camp, and who wishes all day long his wife were still alive to hold him when the nightmares come.

He is an ordinary and yet an extraordinary human being -- a person who offered some of his life's most vital years in the service of his country, and who sacrificed his ambitions so others would not have to sacrifice theirs. He is a soldier and a savior and a sword against the darkness, and he is nothing more than the finest, greatest testimony on behalf of the finest, greatest nation ever known.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.